State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1568

State of Minnesota,
Respondent,

vs.

Eli Jovanny Masani,
Appellant.

Filed August 26, 2019
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-17-4528

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and
Kalitowski, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction for offering a forged check, arguing that the
district court plainly erred by instructing the jury not to draw any adverse inference from
his failure to testify. We affirm.
FACTS
Respondent State of Minnesota charged appellant Eli Jovanny Masani with offering
or intending to offer , with intent to defraud, 16 forged checks in an aggregate amount of
more than $35,000. The case was tried to a jury. The evi dence at trial showed that in the
summer of 2016, L.L. discovered that several checks had been cashed on her bank account
without her knowledge. Masani’s name appeared on 14 checks that were drawn from
L.L.’s bank account and notations on the checks indicated that L.L. had paid Masani
approximately $56,100 for “[h]ome repair” and “supplies.” The checks appeared to have
L.L.’s signature. But L.L. had not written the checks and did not recognize the handwriting
on them. And neither she nor her son, R.L., knew Masani.
On September 27, 2016, L.L. and R.L. spoke with an employee at L.L.’s bank and
filled out a forgery report. That same day, R.L. and L.L. spoke to the police and provided
an officer a copy of that report. A fraud investigator at the bank determined that the “vast
number of checks issued and the dollar amounts” of those checks were unusual for L.L.,
particularly the frequency and the type of payments being made. The investigator
discovered that the checks were cashed in reference to a bank account held by Masani using

3
Masani’s driver’s license number. Surveillance video showed a man who resembled the
photograph on Masani’s driver’s license cashing the checks.
Masani’s name also appeared on two checks drawn from the bank account of A.M.
The checks appeared to have A.M.’s signature and contained notations indicating that A.M.
had paid Masani for “Car Payment[s] .” A.M. had not written the checks , A.M. did not
know Masani, and A.M. did not authorize any one to write checks from his account. A
fraud investigator at A.M.’s bank determined that Masani opened a bank account on
July 30, 2016, and subsequently cashed two checks totaling $5,000, which were drawn
from A.M.’s account . The checks were cashed using a debit card number and personal
identification number ( PIN) linked to Masani. Surveillance video showed a man who
appeared to be Masani cashing the checks.
A deputy with the Ramsey County Sheriff’s Office investigated the checks drawn
on L.L.’s account and determined that Masani had forged L.L.’s signature on checks that
belonged to L.L., rather than creating counterfeit checks from loose leaf or computer paper.
The deputy did not determine how Masani acquired L.L.’s checks.
Masani waived his right to testify at trial, and he did not call any witnesses or present
any evidence. In closing argument, Masani ’s attorney admitted that Masani cashed the
checks belonging to L.L. and A.M., but he argued that they were not forgeries and that
Masani did not offer them with intent to defraud.
The district court instructed the jury, in relevant part, as follows:
So the State must convince you by evidence beyond a
reasonable doubt that the defendant is guilty of the crime
charged. The defendant has no obligation to prove innocence.

4
The defendant has the right not to testify. This right is
guaranteed by the federal and state constitutions. You should
not draw any inference from the fact that the defendant has not
testified in this case.

Masani did not object to that instruction.
The jury found Masani guilty a s charged and returned a special verdict indicating
that the aggregate amount of the forged checks was more than $35,000. Masani appeals
from the resulting judgment of conviction.
D E C I S I O N
Masani argues that “[t]he distri ct court committed plain error affecting [his]
substantial rights when it gave a no -adverse-inference instruction without first obtaining
[his] consent.”
“[A]t the defendant’s own request and not otherwise, [he shall] be allowed to testify;
but failure to testify shall not create any presumption against the defendant, nor shall it be
alluded to by the prosecuting attorney or by the cou rt.” Minn. Stat. § 611.11 (2018 ). A
district court ordinarily should not give a no -adverse-inference jury instruction unless the
defense requests it and the defendant consents to it. McCollum v. State, 640 N.W.2d 610,
616 (Minn. 2002). The no-adverse-inference instruction “should not be given without the
personal and clear consent of the defendant.” State v. Clifton, 701 N.W.2d 793, 798 (Minn.
2005).
Masani did not object to the jury instructions at trial . An unobjected-to jury
instruction is reviewed for plain error. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).
Under the plain-error standard of review, a defendant must establish (1) an error , (2) that

5
is plain, and (3) that affected his substantial rights. State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). “If the first three prongs are satisfied, the appellate court considers whether
reversal is required to ensure the fairness, integrity, or public reputation of judicial
proceedings.” State v. Zinski, 927 N.W.2d 272, 275 n.5 (Minn. 2019) (quotation omitted).
An error is plain if it “contravenes case law, a rule, or a standard of conduct.” State
v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The parties agree that the district court
plainly erred by including a no-adverse-inference instruction in its final instructions to the
jury without first obtaining Masani’s consent. See State v. Gomez, 721 N.W.2d 871, 881
(Minn. 2006) (“Because the record does not contain [the defendant’s] consent to the giving
of the no -adverse-inference instruction, . . . giving the instruction was error and that
. . . error was plain.”); State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (holding that it
was plain error to give no -adverse-inference instruction without obtaining defendant’s
consent). We therefore consider whether th at plain error affected Masani’s substantial
rights.
The third plain-error prong is satisfied “if the error was prejudicial and affected the
outcome of the case.” Gomez, 721 N.W.2d at 880. “An error in instructing the jury is
prejudicial if there is a re asonable likelihood that giving the instruction in question had a
significant effect on the jury verdict.” Id. A defendant who fails to object to the no -
adverse-inference instruction “bears a heavy burden of showing that substantial rights have
been affected.” Id. Giving the no-adverse-inference instruction without consent, absent a
showing of prejudice, is harmless. Id.

6
Masani argues that “[t]he unconsented-to instruction focused the jury’s attention on
[his] decision to remain silent” and “fueled the jury’s natural inclination to assume that
[he] did not testify because he did not have a valid explanation to counter the evidence
presented.” Masani also argues that he was prejudiced by the district court’s error because
L.L.’s testimony was “concernin g” and her memory was “far from perfect.” He argues
that “[g]iven these weaknesses, the jury doubtlessly would have wanted to hear [him]
explain his version of events.”
By its terms, a no -adverse-inference instruction calls a defendant’s silence to the
jury’s attention. McCollum, 640 N.W.2d at 617. But it also instructs the jury not to draw
any negative inference based on the defendant’s failure to testify. We presume that the
jury followed that instruction. State v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016).
Moreover, Masani’s arguments are speculative, and speculation regarding prejudice caused
by a no -adverse-inference instruction is insufficient to establish reversible plain error.
State v. Johnson, 915 N.W.2d 740, 746 (Minn. 2018).
Lastly, Masani argues that “[a]lthough there was ample evidence that [he] offered
the checks, the State was required to also prove the checks were forged and that [he]
intended to defraud someone when he offered them.” To that end, the state presented
evidence that L.L. and A.M. did not know Masani, that L.L. and A.M. did not write the
checks in question, that L.L. did not recognize the handwriting on the checks that she
allegedly wrote, and that a bank employee found the frequency and type of payments made
on L.L.’s account unusual. Given that strong evidence of guilt , Masani has not met his

7
heavy burden to show that his substantial rights were affected by the no-adverse-inference
instruction.
In sum, it is not reasonably likely that the no -adverse-inference instruction had a
significant effect on the jury verdict. Masani therefore is not entitled to relief under the
plain-error standard.
Affirmed.